3 Justification for Minority Rights

Dr. Kadloor Savitri

Abstract

This module attempts to discuss the issue of justification of minority rights at the international and national level while providing a broad survey of various stands and positions taken by those arguing in favour of minority rights and those contesting their continuing relevance. In doing so, this module looks at three important questions in this context. Why do we need minority rights? Do minority rights exist? And, what should justifiably be the nature of minority rights – universal or group-differentiated; or, individual or collective?

Introduction: Why Minority Rights?

The end of the Cold War signaled the beginning of a new era in the field of international relations and institutions. The nation-state system was hard pressed to devise newer mechanisms to protect its citizens and boundaries amidst its crumbling edifice in the face of disintegration of many countries along the ethnic, ideological lines. Majority of the states in the contemporary world are heterogeneous in the composition of their population. In fact, the phenomenon of minority cultures is so ubiquitous that there is hardly any country in the world that does not have diversity of one kind or the other. The question of minority rights therefore is a universal question that is of relevance to everyone.

The insufficient attention given to minority groups led to the increasing alienation and polarization of groups within the nation-states. As a result, one witnessed the emergence of conflicts along the fault lines of inter-group existence within a socio-political-cultural matrix. Managing intergroup harmony has been the most important basis of eschewing conflict in societies and the nation-building project. One of the reasons for increased instances of conflicts and conflagration in the post-Cold War period is the insufficient protection and creative space afforded to the different groups in society. Minority groups have been at the receiving end of this social-shortsightedness over the centuries. Since the end of the Cold War in the 1980s, the political and cultural cartography of the nation states around the world has undergone a major change. Many hitherto heterogeneous states have made way for newer states as a result of redrawing of boundaries and newer composition of groups and communities. The fact that most new states since the beginning of 1990s have born in the aftermath of internecine intra-state conflicts among ethnic, religious and linguistic groups underscores the existing group differences on linguistic, ethnic, religious and cultural basis to a varying degree.

Minority rights are thus seen as essential to the peaceful coexistence of the societies and stable political regimes. This is not to discount the fact that there are natural processes of social evolution leading to the emergence and decline of cultural groups; while natural processes of emergence and decline of cultural groups are mostly driven by internal factors, there are external factors too that impact such processes. It is the latter source of factors (exogenous), coupled with coercion, which spells the death of minority cultures in an unnatural way and one that needs to be intensely addressed. The importance of minority rights has become all the more pronounced in the twentieth century with the careful documentation of the group composition and diversity. Ted Gurr identified that there are 233 groups that can be classified as ‘disadvantaged minorities’. While the concentration of minority cultures varies from place to place and continent to continent, it can be asserted with a modicum of certainty that their presence is universal. In other words, there is no country in the world where minority groups of one kind or the other do not inhabit. In view of this purely objective demographic fact, Ted Gurr’s study (Gurr, 1993) was appropriately titled as ‘Minorities at Risk’. It also allows for positioning minority rights as an international problem and concern that cannot be brushed aside by the member states as an external issue of little importance to them.

Exclusivist policies that inhibit the participation of minority groups in power sharing, decision-making and other common activities in public sphere have impeded the peaceful coexistence of plural communities as also their enmeshment in a common social-political-cultural matrix. Exclusion from a common physical and political matrix bears serious implications for economic participation and aspirations of minority communities. Of the 190-odd states in existence today, about 175 states are multicultural in their composition (Vijapur, 2006:367-8). Yet, there are few legally binding provisions relating to minority rights and even they are open to disputed meaning and differing interpretation. Some legally nonbinding instruments like the 1992 UN Declaration on the rights of Persons Belonging to Ethnic, Religious or Linguistic Minorities provide better guidance on some aspects of minorities, their lack of enforcement power is a seriously mitigating factor in the realization of minority rights (Pejic, 1997:667). Absence of a level playing field together with dominance and policies of exclusion have led to ethnic crises of various kinds resulting splintering away of political-geographical cohesion.

In modern political systems, democracy has come to be seen as the most preferred and widely prevalent system of governance. However, democracy is based on the concept of majority rule through popular representation. The majority rule in a democracy derives its moral authority and justification from the presence of collective wisdom and the numbers that support it (Tocqueville, 1945). However, majorities are not permanent groups with irreversible primordial characteristics; they are constructed categories that do not ‘necessarily represent an actual majority position, and that they are subject to multiple forms of manipulation and political pressure…’ (Fortman, 2011:275). This often gives rise to problems of lack of accommodation and adequate representation to the minority cultures. The principle of majoritarianism in democracy militates against the minority identity, minority representation and their right to participation. Hence, minority rights are essential to resolve conflicts and encourage inter-community harmony in a democracy.

The question of minority rights has long been a matter of academic debate surrounding such questions as do minority rights exist as a separate set of rights; do minority rights militate against the universal human rights for all; and, lastly, are minority rights justifiable within the rubric of principles of equality and non-discrimination. Answers to some of the above-mentioned questions are attempted in the following sections.

Do Minority Rights Exist?

The range of ideas in support and in opposition to this question is astonishingly diverse. Broadly speaking, there are two sets of authors, one proclaiming vociferously that minority rights as political entitlements of citizens and as a distinct entity within the broad gamut of human rights are in existence beyond doubt. The other set of thinkers raises concern and anxiety over the excessive emphasis on minority rights and hold that minority rights are antithetical to a more fruitful pursuit of universal human rights for all. In fact, they proclaim that since human rights can be borne by human beings (individuals), minority rights couched in terms of group rights cannot be regarded as human rights. This leads us to a corollary question: are minority rights collective or individual in nature and whether they can be subsumed within the broad category of human rights. In the face of increased opposition to their stand, the supporters of minority rights have sought to drive home the point that human rights, without embracing minority rights in their fold, are impoverished and weak. For Kymlicka, minority rights occupy the centre stage of constitutional, legal, political and cultural discourse today that cannot be wished away; the inclusion of minority rights in the constitutional design is a given proposition [emphasis added]. He further posits that the prerogative to determine the nature of minority protection within a country is no longer the exclusive preserve of that country alone; instead, ‘the international community plays an increasingly important role in shaping policy in this area, endorsing some models of integration and accommodation while discouraging others’ (Kymlicka, 2007: 2).

The support for the recognition and inclusion of minority rights in institutional designs and in the academic discourse was more marked in the first half of the twentieth century as seen in the liberal theorists’ debates and writings at that time and in the way in which the League of Nations accorded importance to the issues of ethnic and national minorities. It is held that there was far more engagement with the issues concerning minorities by the liberal theorists and statesmen in the first part of the twentieth century than can be witnessed among the contemporary liberals (Kymlicka, 1995:49). This engagement is also echoed in the extended institutional concern with minorities in the early twentieth century. The League system brought into focus the recognition of the existence of minority rights and the legitimization of their protection within the fold of international institutional arrangement (Morsink, 1999:1009; Pejic, 1997:666).

Nature of Minority Rights – Individual or Collective?

The support for minority rights on the basis of group identity has had to encounter the seemingly opposite set of individual and collective rights within the broad spectrum of human rights. A group right in the context of minority rights is understood as a right, collectively held by the group, but it has interests that can be a summation of the interests of the members of that group. The moral justification for a collective right is derived from the argument that ‘moral standing necessary for any claim of right is provided by the moral standing of the several individuals who make up the group’. Strong sociological roots of common interests – and identity based on primordial ties or perceived sense of belonging to other members of the group – enable a minority cultural group to present a claim to a group right. Moreover, the notion of group right does make allowance for divergence between representation of individual interests and collective shared interests of members of a group (Jones, 1999:85). In terms of international legal stand, the provision of special structures for minority protection entails that the law would move beyond the realm of individuals’ rights, exercised in association with others, to the realm of group rights (Vuciri, 1993, cited in Rodley, 1995:61).

Those who argue against the viability of distinct minority collective rights as human rights are led by Nigel Rodley and followed by Jack Donnelly, Marlies Galekamp, Paul Sieghart and others (Jones, 1999:80). Rodley raises three questions related to minority rights; firstly, how to reconcile special rights for minorities with respect to the rights of others and the principles of nondiscrimination and equality under the law. Secondly, how to reconcile special arrangements for minority groups with respect to the individual human rights of members of the minority. And thirdly, how to reconcile such arrangements with respect to the rights of minorities within the minority

(Rodley, 1995:49-50). While responding to the three questions mentioned above, Rodley systematically deploys various case law at the regional and international level to argue that minority rights are problematic, controversial and insufficiently defended by the Human Rights Committee of the United Nations in respect of Article 27 of the ICCPR (Rodley, 1995:70-71). Fortman (2011:284-286), while arguing that the term minority presents difficulties in the conceptualization of international human rights documents, believes that the positioning of minority versus majority is based upon collective exclusive elements and that it amounts to actual abuse of such positions. Hence, the term minority should be cast aside in pursuit of universal dignity for all. Hence, the key issue lies not in the label of minority or majority but is in determining ‘the collective subject in need of protection’ (2011:302).

Justification for Minority Rights

Conceptually speaking, an answer to the question, ‘why minority rights?’ has to be addressed by looking at the broad matrix of liberal-democratic traditions and multiculturalism. While it is true that cultural plurality has been witnessed for centuries and instances of peaceful coexistence can be found from ancient to medieval to modern period, mere existence of plurality doesn’t indicate prevalence of equality and respect. In other words, tolerance was a policy choice followed by benign rulers and not a matter of right claimed by the minority groups (Mahajan, 2002:11). The concept of equality, non-discrimination and equality of opportunity found repeated emphasis in the post-Second World War development of international law and liberal political theory. Peaceful coexistence in itself does not automatically imply equal coexistence. This is the clear distinguishing factor, i.e., insistence on equality and non-discrimination, between peaceful coexistence of plural cultures in the past, and any modern post-War discussion on minority rights. Insistence on equality is also the prime distinguishing factor between pluralism and multiculturalism.

The question then is how does one justify and accommodate minority rights in the tussle between universal citizenship and the provision for minority rights based on equality and difference

in a group differentiated arrangement? Group differentiated citizenship denotes a system where persons belonging to minority cultures are included in the larger society not merely as citizens but also as members of cultural communities to which they belong. The idea of differentiated citizenship floated by multiculturalism affords greater fluidity to accommodate and justify minority rights. Multiculturalism acknowledges the contribution of universal citizenship in bringing erstwhile excluded groups into the fold of citizenship and public-political domain. However, it asserts that universal citizenship alone cannot guarantee equality to minority groups in the absence of group-differentiated rights to take care of the pressures of homogenization (Mahajan, 2002: 85-86). Hence, it is argued, there is a need to go beyond universal citizenship to ensure substantive equality between groups and to translate universal citizenship into democratic citizenship – one that takes into account an individual’s membership of the state and of the group(s) based on loyalties and identity.

Group-differentiated Citizenship versus Universal Citizenship

Multiculturalism nestles the scheme for protection of minority rights in the idea of differentiated citizenship. It allows for rights to self-government and separate representation based on membership of the community. However, this scheme has caused anxiety and uneasiness among those pledging support to unity and integrity of nation-state coupled with a deep anxiety over possible demand for self-determination and secession based on self-government rights. For long, liberal theorists too have feared that minority rights, envisaged as collective rights, are inimical to individual rights and, thereby, unsettle the liberal pillar of individual freedom and equality. Those supporting group differentiated citizenship counter this anxiety by suggesting that minority rights do not militate against the tenets of universal citizenship.

In the same vein, Kymlicka argues that group-differentiated rights do not necessarily indicate the persons belonging to minority groups as incessant carriers of group identity and that the collective rights are ‘exercised by the collectivities, as opposed to rights exercised by individuals’, and that the two sets of rights are in conflict with each other (Kymlicka, 1995: 34-35). A two-tier clarification of group-differentiated rights would involve, firstly, a minority group’s rights vis-à-vis its own members, or what can be termed as rights internal to a group’s membership; secondly, a minority group’s rights collectively vis-à-vis other groups in society. Thus, the first set of rights is termed as internal restrictions and the second set of rights as external protection. The former signifies the intra group relations while the latter is symptomatic of inter group relations in a society (Kymlicka, 1995:36).

Kymlicka makes a distinction between three kinds of group differentiated rights, which are, self-government rights, polyethnic rights, and special representation rights. Most authors discuss similar nature of group-differentiated rights in terms of cultural rights, self-government rights and special representation rights (Mahajan, 2002); Seglow identifies cultural rights, special representation rights and a third category of amorphous rights that are a matter of policy and are more difficult to define since they usually concern with a group’s self-esteem, its identity and its cultural practices (Seglow, 2003:158). A minority group can demand any or a combination of the three types of group differentiated rights and each of them can help in imposing internal restrictions and in seeking external protection. He then illustrates how each kind of group differentiated citizenship can operate in extending external protection and internal restriction to help a minority group counter economic and political power in a larger society. In terms of external protection:

• Special group representation rights within the political institutions of the larger society make it less likely that a national or ethnic minority will be ignored on decisions that are made on a country-wide basis.
• Self-government rights devolve powers to smaller political units, so that a national minority cannot be outvoted or outbid by the majority on decisions that are of particular importance to their culture, such as issues of education, immigration, resource development, language, and family law.
• Polyethnic rights protect specific religious and cultural practices which might not be adequately supported through the market…, or which are disadvantaged (often unintentionally) by existing legislation… (Kymlicka, 1995: 37-38).

Most writers on multiculturalism follow similar classification of content of minority rights with few modifications (e.g., Mahajan, 2002 and Seglow, 2003). The content of minority rights include special representation rights, cultural rights in terms of freedom of religion and linguistic rights, and, thirdly, participatory rights or, as Seglow would propose, recognition of collective self-esteem, identity and a group’s attitude towards itself (Seglow, 2003:158).

In terms of internal restrictions, the operational dynamics of each type of group differentiated rights differs in the sense that such groups seeking internal restriction ‘are concerned with controlling internal dissent’. Both self-government rights and polyethnic rights can be used to impose internal restrictions on the members of a minority groups in such areas as cultural practices, religious rituals or personal laws in terms of education of children or marriage. The efforts at seeking substantive equality by accommodating religious and cultural minorities often results in worsening situation for vulnerable members of the group such as women, children, nonconformists, and dissenters in terms of their individual freedom. This phenomenon is exemplified in Ayelet Shachar’s phrase “the paradox of multicultural accommodation” (Eisenberg and Spinner-Halev, 2005:7). The possible danger then is the violation of an individual’s constitutional rights and protections by the oppressive decisions taken by a minority group. Since most minority groups seek autonomous decision making powers under the self-government rights or polyethnic rights, it substantially limits an individual’s access to constitutional remedies like approaching the Supreme Court for redressal of a grievance against one’s own community institution’s decisions such as a decision by the leader of a religious sect that is widely regarded as sacrosanct. While these are questions of legal safeguards and individual freedom, a natural corollary to this is about cultural determination. There is a similar dilemma that modern democracies face; and that is the question of reconciling citizenship based on equal rights while accommodating ‘different histories, circumstances, and aspirations’ (Smith, 2012:85).

Kymlicka alludes (1995:39) to the fact that minority groups fear ‘misinformed or prejudiced stereotypes’ popularized about their cultures and the cultural bias that may inhere judgments and interpretations of their rights by the majority community judges. The above discussion leads us to a preferred design for the protection for minority communities. The minority communities seek special exemptions and autonomy from the list of rights while fundamentally adhering to the scheme of constitutional guarantees and general principles. Secondly, external autonomy is to be complemented by internal freedom and individual autonomy. This, by far, is the most desirable design to protect minorities. In this context therefore, it is worthwhile to distinguish between internal restrictions and external protection to overcome the ambiguity surrounding collective rights for minorities. All group-differentiated rights are not collective rights. Many such rights are exercised by the individuals.

It is a given proposition that majority groups benefit from a privileged position they enjoy in terms of language they use, the religion they practice or the education they wish to receive. Unwittingly, then, state privileges majority groups in more ways than one. When Turkish language is used as official language of the state, members of non-turkish-speaking Kurdish minority group are rendered in a comparatively disadvantageous position vis-à-vis the Turkish-speaking majority in terms of seeking higher education or government employment. Such instances of privileged position enjoyed by the majority community and the comparative disadvantage suffered by minority groups in a state can be multiplied. The language that people speak, the religion groups follow or the dress code that is widely visible, impacts the way minority cultures live in that society, seek education, follow their religious practices, receive media coverage or even resist pressures to follow the most widely visible dress code. ‘Indeed, some theorists argue that all or most cultural groups deserve some state support, or …state recognition and respect’ (Eisenberg and Spinner-Halev, 2005:7).

When equality is measured against tolerance with regard to minority groups, the support for minority groups becomes even more urgent. Tolerance is a key determinant in respecting the minority groups but it is also contingent upon that liberal virtue called autonomy. Kymlicka, underscores the importance of intra-group autonomy in the same way as equality is essential but it requires the minority groups must respect equality of their members. Hence, both autonomy and equality have to ensure external and internal presence as they are so vital for begetting tolerance in a society. ‘It is sufficient here to reiterate that the co-presence of different religions, races, castes and other communities is not an indicator of their equal status in the public domain’ (Mahajan, 2002:14).

Since equality and non-discrimination are twin principles of international law and normative values associated with democracy, one cannot be sustained in the absence of the other. Hence equality of status and rights of all communities is a matter of right and not ‘dependent upon the largesse or benevolence of the majority community’ (2002:15). Democracy provides a congenial framework within which the emphasis on multiculturalism, equality and non-discrimination as the bases of minority rights can be articulated; it is also a viable site for articulating the enduring themes of autonomy, difference, and tolerance which equally determine the discourse on protection of minority right

Conclusion

The above pages have sought to elaborate on the nuanced (pro)positions in favour and against multiculturalism, minority rights, differentiated citizenship, group identity and the like. There are as many supporters of minority rights as there are opponents, each offering arguments to sustain their respective intellectual positions with regard to minority rights. The analysis in the discussion so far leads one to endorsing a proposition in favour of a possibility of reconciling the demands of majority with those of the minority groups within the broad framework of constitutional arrangements and principles of multiculturalism.

The ebb and flow of support for multiculturalism as reflected in policy choices at the national and international level has witnessed ascendancy in the 1970s through the 1990s. However, emergence of intra-state conflicts followed by the birth of new states based on ethnic identities in the mid-1990s has brought to the fore a trend towards revival and re-assertion of identity, unitary citizenship, and the nation-building project marshaled by identity. The decline of support for multiculturalism has had a ripple effect in terms of dwindling support to the notions of differentiated citizenship and inclusive minority rights. In fact, it has led to a perception that multiculturalism has failed to benefit its intended client group, i.e., the minorities, by failing to ‘address the underlying sources of their social, economic and political exclusion, and may indeed have unintentionally contributed to their social exclusion’ (Kymlicka, 2010:98).

Reference

• Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, Oxford University Press, Available at: http://oxfordscholarship.com/view/10.1093/0198290918.001.0001/acprof-9780198290919
• Abdulrahim P.Vijapur, International Protection of Minority Rights, Volume 43, No. 4 Available at: http://journals.sagepub.com/doi/10.1177/002088170604300402#articleCitationDownloadC ontainer